Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
to be published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Scottish High Court of Justiciary - restricted route of appeal on matters related to devolution can go to the UK Supreme Court
[Previously they were heard by the Judicial Committee of the Privy Council.]
Prior to 1998, Scotland’s independent judiciary placed a ceiling on the High Court of Justiciary being the last court of resort for criminal appeals. This remains the case. Lord Hope observed in the case of Robertson v Higson:
‘It will be important [...] for the members of that [UK Supreme] court to appreciate that the devolution jurisdiction that is being transferred by the 2005 Act is a jurisdiction which is confined to dealing with devolution issues and with questions that are preliminary or ancillary to their determination. The jurisdiction of the High Court of Justiciary as the court of last resort in all criminal matters in Scotland is, and must be seen to be, otherwise unaffected.’ ([2006] UKPC D 2; at paragraph 6) However, the Scottish Devolution Act reconstituting Scotland’s Parliament created an appeal route on ‘matters relating to devolution’ to the Judicial Committee of the Privacy Council which then held its hearings in Downing Street. Under the terms of the Human Rights Act 1998, specifically Article 6 (right to a fair trial) and the Scotland Act 1998, 20 criminal cases from the Scottish Courts have been heard at the JCPC. In particular:
Burns v. Her Majesty's Advocate (Scotland) [2008] UKPC 63 (15 December 2008)
Spiers v Ruddy (Scotland) [2007] UKPC D2 (12 December 2007)
DS v. Her Majesty's Advocate (The High Court of Justiciary Scotland ) [2007] UKPC D1 (22 May 2007)
Holland v. Her Majesty's Advocate (Devolution) [2005] UKPC D1 (11 May 2005)
Sinclair v. Her Majesty's Advocate (Devolution) [2005] UKPC D2 (11 May 2005)
Moir v. Her Majesty's Advocate (Devolution) [2004] UKPC D2 (11 November 2004)
Flynn & Ors v. Her Majesty's Advocate (Scotland) [2004] UKPC D1 (18 March 2004)
Procurator Fiscal, Kirkcaldy v Kelly (Scotland) [2003] UKPC D1 (5 March 2003)
"R" v Her Majesty's Advocate & Anor [2002] UKPC D3 (28 November 2002)
Anderson & Ors v. Scottish Ministers & Anor (Scotland) [2001] UKPC D5 (15 October 2001)
Millar v. Procurator Fiscal (Scotland) [2001] UKPC D4 (24 July 2001)
McLean & Anor v. Procurator Fiscal (Scotland) [2001] UKPC D3 (24 May 2001)
Follen v. Her Majesty's Advocate (Scotland) [2001] UKPC D2 (08 March 2001)
Her Majesty's Advocate & Anor v. McIntosh (Scotland) [2001] UKPC D1 (5 February 2001)
Procurator Fiscal v Brown (Scotland) [2000] UKPC D3 (5 December, 2000)
As Aidan O’Neill has observed in very informative briefings on the UK Supreme Court blog ‘The very existence of the possibility of appeal to London from decisions of the Scottish criminal appeal court has become something of a thorny constitutional issue of late, at least in Scotland. Clear tensions have been exposed between the judges of the criminal appeal court and the (Scottish judges) of the UK Supreme Court on this issue.’
Devolution Appeals Part 1. 3rd December 2009 by Aidan O’Neill.
Devolution Appeals Part 2. 4th December 2009 by Aidan O’Neill.
Civil Appeals from Scotland 11th December 2009 by Aidan O’Neill.
This appellate jurisdiction had been transferred from the Privy Council to the UK Supreme Court by the Constitutional Reform Act 2005. The statement in Comparative Media Law and Ethics that there are no appeals from the Scottish High Court of Justiciary in criminal cases to the Supreme Court is strictly true. But it should be acknowledged that on the narrow issues relating to Article 6 of the Human Rights Act via the devolution route in the Scotland Act of 1998, the UK Supreme Court does appear to have a narrow appellate jurisdiction.
One significance of these cases is that there may be further clarification on whether this appeal route on Scottish criminal matters through the ‘devolution/Human Rights route’ to the UK Supreme Court remains constitutionally valid.
There is a body of opinion in the higher ranks of the Scottish judiciary in Edinburgh that Parliament did not intend to end the bar on criminal appeals beyond the High Court of Justiciary when it enacted paragraphs 1(c) and 13 of Schedule 6 to the Scotland Act 1998.
They believe that any intention to introduce, for the first time, a right of appeal to the Privy Council against the merits of decisions by the High Court of Justiciary would have been made categorically clear.
